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them by me," and his Honor was desired to look at the ori. ginal Will, in order to ascertain whether the word written on" in the probate was not “or” in the Will, the learned

” Judge declined to do so, and said that looking at the Will to ascertain the alleged inaccuracy of the probate was quite different from the case of a question arising on the punctuation of the Will, or on the introduction of a capital letter, or other mark indicating where a sentence was intended to begin, and which might affect it's sense.-The law seems not to be settled on the point last suggested by his Honor, viz., whether, and in what cases, the Court will look at the Will itself in order to derive aid in it's construction from the punctuation, or manner of writing, or from other appearances on the face of it. In Compton v. Bloxham (m), coram Knight Bruce, V.C., his Honor relied, in construing a Will, on the circumstance that certain words began an entirely new sentence; and he begged to have it observed, that although it was a Will of personalty, he had sent for and examined the original Will, and had been influenced by it in his construction. Again, in Shea v. Boschetti (n), where a fac-simile probate of a Will, with certain passages of it struck through, had been granted, Sir J. Romilly, M.R., expressed his opinion, that, whether the Court of Probate grants a fac-simile probate or not, the Court of Chancery is bound to look at any thing in the original Will itself which may aid and assist it in coming to a correct conclusion as to the construction to be put upon the contents of the Will. But in Gann v. Gregory (0), coram Lord Cranworth, C., where the Ecclesiastical Court had granted a fac-simile probate of a Will, made after the Wills' Act came into operation, with cross lines drawn in ink over the bequests of certain legacies (the decree in the Prerogative Court having been pronounced for the Will as contained in the document, “ with the several alterations, interlineations, and erasures, appearing therein "); and it was sug(m) 2 Coll. 201.

(n) 18 Beav. 321. (0) 3 De G. M. & G. 777.

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gested to his Lordship, that if the original Will were looked at, it would be seen that the pencil alterations made in the legacies contained under the cross lines must have been made after those lines were drawn, and it might thence be inferred that the testator meant the legacies to remain part of the Will, his Lordship said that he was not one of those who thought it was competent for the Court of Chancery on every occasion to look at the original Will, though he was aware Lord Eldon did it in some instances, but in each there were particular circumstances : And his Lordship proceeded to express his opinion, that as probate had been granted of the Will, with the alterations in it, it must be taken as conclusively settled by the Ecclesiastical Court that the Will was at it's execution in its present state ; that is, that the testator executed the instrument with the lines drawn over it, meaning thereby, that the legacies were not to stand part of the Will. Again, in Taylor v. Richardson (p), coram Kindersley, V.C., where the probate had been delivered out with blanks in the course of the Will, and it was suggested that it might be construed as if the words ran continuously, his Honor observed, that the Ecclesiastical Court said that the Will was an instrument in such and such words, and in certain places, such and such blanks, and that the Court of Chancery was bound to look at them as part of the Will.

On the whole, it may, perhaps, be doubted whether, in strictness, the Court of Chancery has not gone beyond its legitimate means for construing Wills of Personalty even in the instances above mentioned, where it has sought aid from appearances in the Will itself not to be found in the probate, and whether the more proper course is not to apply to the Ecclesiastical Court for a corrected fac-simile probate, if it be desired to rely on stops or capital letters, or any marks which, in truth, are apparent in the Will, though not in the probate. For until the Court of Probate has sanctioned them as legal parts of the Will, non constat that they have

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(p) 2 Drewr. 16.

, &c. P. L BE

Pt

not been introduced by a stranger, or by the testator himself after the Will was executed, or otherwise, so as tot properly to form a part of it: And this can only be decided in the Ecclesiastical Court, which is bound to escade from its probate, whether a fac-simile probate or not, all such appearances on the face of the Will as do not legitimately beloeg to it as a testamentary instrument o.

See aste, p. 298, as to fac-sisie poc batas.

CHAPTER THE SECOND.

OF THE REVOCATION OF PROBATE AND LETTERS OF

ADMINISTRATION.

A PROBATE or a grant of letters of administration may be revoked in two ways: 1. On a suit by citation. 2. On an appeal to a higher tribunal to reverse the sentence by which they are granted.

A revocation by citation usually is, when the executor or Revocation administrator is cited before the Judge by whom the probate

upon citation. or letters of administration were originally granted, to bring in the same, and to show cause why they should not be revoked.

An appeal is to be effected by demanding letters missive, Revocation on called Apostoli, from the Judge a quo, to the Judge ad appeal : quem (a). By statute 24 H. VIII. c. 12, s. 5 (repealed 1 & 2 Ph. & where the

cause is comM. c. 8, revived 1 Eliz. c. 1), Appeals shall be in this menced before manner and form and not otherwise : “ first from the Arch- the Arch

deacon : deacon or his Official, if the matter or cause be there begun, to the Bishop, Diocesan of the see.” And by virtue of the same statute appeals shall not be per saltum to the Archbishop: and this is agreeable to the rule of the ancient canon law (b).

So the appeal from any other jurisdiction not peculiar but or sub-dean. subordinate (as from a sub-deanery) is regularly to the Diocesan : yet if the Judge of the subordinate and Diocesan Courts be the same person (as in a late instance where the same individual was both Sub-dean and Chancellor of Sarum) the appeal may be per saltum to the Metropolitan (c):

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(a) Gibs. Cod. 1035. (6) Gibs. Cod. 1036.

(c) Beare v. Jacob, 2 Hagg. 257, 522.

but the reason must appear by the formal instruments in the cause.

If an Archdeacon has a Peculiar, the case is not within the statute : which applies only to the ordinary cases of archdeacons presiding in jurisdictions which are subject to the superior jurisdiction of the Bishop, and not to cases of

Peculiars (d). where the

By section 6th of the same Statute, if the matter or cause cause is commenced before be commenced before the Bishop Diocesan or his Comthe Bishop :

missary, the appeal shall be “ from the Bishop Diocesan
“or his Commissary, within fifteen days next ensuing
“ the judgment or sentence thereof there given, to the
Archbishop of the province of Canterbury, if it be within
“his province; and if it be within the province of York, then
“ to the Archbishop of York : and so likewise to all other
“ Archbishops in other the king's dominions, as the case by
“ the order of justice shall require: and there to be defini-

tively and finally ordered, decreed, and adjudged, according
to justice, without any other appellation or provocation to
any
other

person or persons, court or courts." where the The words of this section “from the Bishop" are to be cause is commenced in a extended to all who have episcopal jurisdiction : as in the Peculiar :

case of Johnson v. Ley (e), where the Dean of Salisbury, in one of his Peculiars, made letters of request to the Dean of the Arches; it was objected, in order to obtain a prohibition, that this was per saltum, and that he ought to have made request to the Bishop of Salisbury, his immediate Ordinary; but the plea was not allowed, because this was not (as in the case of an archdiaconal jurisdiction) subject to the jurisdic. tion of the Ordinary, but immediately to the Archbishop.

So in a late case it was held that an appeal from the Dean and Chapter of Exeter lies to the Court of Arches, and not to the Consistory Court of Exeter (f). And by the general law, if sentence be given in a Peculiar, an appeal therefrom

а

(d) Parham v.

Templar, 3 Phillim. 243.

(e) Skinner, 589. S. C. semble,

6 Mod. 308.

(f) Parham v. Templar, 3 Phillim. 223.

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